Annual Report, 1999 - Tibet: Tightening of Control
In 1999, the Chinese government violated international and
national law in the areas of arbitrary arrest, detention,
fair-trial guidelines, and standards for appeals. The US
State Department in their 1999 county on China noted "The
Chinese government authorities continued to commit serious
and widespread human rights abuses in Tibet, including
... arbitrary arrest, detention without public trial, and
lengthy detention of Tibetan nationalists for peacefully
expressing their political views. Legal safeguards for
ethnic Tibetans detained or imprisoned are the same as
those in the rest of China and are inadequate in design
and implementation".
In 1999, 130 arbitrary arrests were recorded in Tibet.
According to a UN study, an arrest or detention is
arbitrary if it is: (a) on the grounds or in accordance
with procedures other than those established by law, or
(b) under the provision of a law the purpose of which is
incompatible with the respect for the right to liberty
and security of person. Under both the procedural (a)
and substantive (b) qualifications, arrests and detention
in Tibet continue to be arbitrary under Customary
International Law.
The fundamental problem with criminal procedures
in Tibet is that rule of law is usurped by political
considerations. All acts and beliefs contrary to CCP policy
are grounds for suppression, regardless of established
legal safeguards. Although "the Constitution and laws
[of China] provide for fundamental human rights, these
protections are often ignored in practice. Abuses
include ... arbitrary arrest and detention, lengthy
incommunicado detention, and denial of due process
... In most cases, particularly sensitive political cases, the
judicial system denies criminal defendants basic legal
safeguards and due process because authorities attach
higher priority to maintaining public order and suppressing
political opposition than enforcing legal norms."
Article 9 of the Universal Declaration of Human Rights states:
No one shall be subject to arbitrary arrest, detention,
or exile.
Article 9 of the International Covenant on Civil and
Political Rights (ICCPR) states:
Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except
on such grounds and in accordance with such procedures as
are established by law.
In October of 1998, the Chinese government signed (but
has yet to ratify) the ICCPR. According to Article 18
of the Vienna Convention (of which China is party to), a
"State is obliged to refrain from acts which would defeat
the object and purpose of a treaty in this grey period
(between signature and ratification) preceding entry into
force." The Chinese government's position in relation to
the ICCPR is expressed by Mr. Zhu Muzhi, President of the
Chinese Society for the Study of Human Rights. "[S]ince
China did not participate in drafting the Covenant and its
national conditions differ from those in other countries,
the Chinese government will pay attention to the issues
of how to implement the Covenant and adapt it to China's
existing laws and regulations."
In 1997, changes to the Criminal Procedure Law (CPL) of
China came into effect. However, the underlying content of
the law has remained intact and there is little evidence
to suggest that the move is anything more than an attempt
to bring criminal definition in line with international
nomenclatures. The US Department of State in its annual
Human Rights Country Report on China for 1999 commented,
"implementation of the new CPL so far remains uneven and
far from complete. Even if fully implemented, the CPL
still would fall short of international standards in many
respects."
A number of changes have been made to the CPL. They
include: the term "counter-revolutionary" crime has been
changed to "endangering state security"; administrative
detention to "shelter and investigation" and amendments
concerning the rights to legal defence have been
made. However in Tibet, these changes have not translated
into increased promotion of fundamental freedoms or rule
of law.
In 1999, Tibetans were arbitrarily arrested and detained
for peacefully expressing their beliefs. All forms
of allegiance to the Dalai Lama, the exiled Tibetan
government, the Panchen Lama recognised by the Dalai Lama,
and resistance to Chinese policies in Tibet, were grounds
for arrest and detention.
A number of arrests were reported in 1999 that coincided
with significant anniversaries in China and Tibet, as the
government attempted to suppress any form of political
dissent resulting from the continuing occupation of Tibet.
Three monks were arrested for staging a peaceful protest
during the celebration of the 50th anniversary of the
founding of the People's Republic of China in Lhasa. Four
monks from Taklungdrag Monastery in Toelung Dechen County
in Lhasa, participated in the protest, although one monk
escaped detention. The three monks arrested,
Ngawang Tenzin
(21)
from Toelung Tsomey,
Gyaltsen Jangchub
(21)
from Nagartse County,
and
Namdol Choedon
(22)
from Nyemo County
were reportedly beaten upon their arrest. The
charges, as well as their current whereabouts are unknown.
Ngawang Tsedup,
a 21 year-old monk from Taklungdrag Monastery,
was arrested on August 20, 1999 for shouting
pro-independence slogans on a stage built for celebrations
commemorating the National Minority Games held in Lhasa. He
was taken to Gutsa Detention Centre. His sentence and
current whereabouts are unknown. Unconfirmed reports
indicate two monks and two nuns were arrested for chanting
slogans in the presence of Chinese dignitaries during
a cultural performance at the National Minority Games
in Lhasa. No further information is available on this
incident.
Phuntsok Legmon
(lay name: Tsetan Norbu), 16 years old
and
Namdrol
(lay name: Sonam Choedrak),
21 years old,
from Taglungdrag Monastery near Lhasa City
were arrested on March 10, 1999
for staging a peaceful demonstrations on the
anniversary of Tibetan National Uprising Day. The monks
were charged and convicted by the Intermediate People's
Court of Lhasa City on July 9, 1999 for, "plotting to
split the country or undermining national security" and
sentenced to three and four years with deprivation of
political rights for one and two years respectively.
It is believed that they are serving their sentence in Drapchi
Prison. Phuntsok Legmon is being detained in an adult
prison, in direct violation of Article 37 (c) of the UN
Convention on the Rights of the Child, of which China is
a State Party.
Arrests were reported as a result of resistance to
"patriotic education" campaigns being conducted in
monasteries and nunneries in Tibet."Work teams" have
conducted "re-education" sessions at Kandze Dhargye
Monastery since 1997. On July 20, 1999, eleven monks were
arrested after PSB officials discovered pro-independence
slogans painted on the walls of their monastery. The
identities of the monks as well as details of the arrests
and detentions are unknown at this time.
On October 31, 1999, over 3,000 Tibetans held a peaceful
protest demanding the immediate release of Sonam Phuntsok,
Agyal Tsering and Sonam Choephel in front of the Kandze
County People's government offices and Kandze Detention
Centre. PAP officials opened fire on the demonstrators
injuring an unknown number of individuals. Over 80 Tibetans
were arrested in connection with this incident. The
detainees were held in incommunicado detention. Reports
indicate that an unknown number of individuals have been
released, and others will be released upon remittance of
a fine.
Sonam Phuntsok,
a 48 year-old monk from Kandze Dhargye Monastery
was arrested on October 24, 1999 along with two other monks,
Agyal Tsering,
alias "Agyong"
(47)
and
Sonam Choephel,
by officials of the Kandze PSB. Sonam Phuntsok is a
well-known scholar of Tibetan history and religion as well
as a proponent of education for Tibetans. He was suspected
of having contacts with the Tibetan Government-in-Exile
as well as suspicion of his involvement in political
activities. Agyal Tsering had previously been arrested
for activities promoting Tibetan independence in 1990,
including distributing leaflets and posters in Kandze
and Odoling City, Qinghai Province. Sonam Choephel
is reportedly the assistant to Sonam Phuntsok. Sonam
Phuntsok's arrest led to a large demonstration held in
Kandze a week after the arrest of the three monks.
Tsering Dorje,
a 26 year-old teacher from Rebkong County in Malho "TAP",
Qinghai Province, was detained on August 15, 1999 in
Dulan County, Amdo (Chinese: Qinghai). He was charged
with assisting two foreign researchers investigating a
proposed World Bank project. The two foreign researchers,
Gabriel Lafitte (Australia) and Daja Meston (USA) were
released shortly after their detention and expelled from
China. Tsering Dorje was released from custody after being
detained for one month and was seen at Qinghai Teacher
Training College in Xining. Tsering Dorje's release
appears to have been the result of foreign governments
and institutions intervening on his behalf.
Lobsang Kunchok,
(Lay name: Choedar),
a 26 year-old monk from Kirti Monastery in Ngaba County,
was arrested in April of 1999 by
members of the Ngaba County PSB for peacefully advocating
Tibetan independence and allegiance to the Dalai Lama. His
crimes include pasting posters calling for a "Free Tibet"
and "Long Live the Dalai Lama" in Ngaba County. He was
sentenced to five years' imprisonment and is currently
serving his sentence is Barkham Prison.
Penpa Tsering,
30 years old and two unknown monks from Namo Monastery
were arrested on May 31, 1999 by PSB officials of the
Tso-toe township in Phenpo Lhundup County. The monks were
arrested for peacefully advocating Tibetan independence by
pasting "Free Tibet" posters on the gate and walls of the
Tso-toe government offices. The three monks were originally
detained in Lhundrup County Detention Centre. Their current
whereabouts as well as status are unknown.
The revised CPL eliminated six forms of pre-trial
detention, including "shelter and investigation" an
administrative form of detention under which a suspect
could be held without formal charges for a period of up to
three months. This three month limit had been routinely
violated, and cases have been reported of people being
held in "shelter and investigation" for up to ten years.
In the amended CPL, the time limit for judicial detention
without charge is a maximum of 44 days, an extension of
ten days allowed under the 1979 law. However, part II of
the amended CPL allows new possibilities for extensions to
the period of time for which a person can be detained and
"investigated". As in the 1979 CPL, the amended version
allows a suspect to be held in custody for two months with
a month extension allowed for "complicated cases". The
amended law also allows for a suspect to be held for a
further two months with the approval of the procuratorate
at the "TAR" or municipal level in "major and complicated"
cases, including those "involving a broad spectrum of
crimes for which evidence is difficult to obtain." A
detainee can therefore now effectively be "investigated"
for considerably longer than 44 days before formal charge,
arrest and procuratorial and judicial procedures begin,
without violating the flexible time stipulated in the
amended CPL.
Under the provision "shelter and investigation," detentions
were determined by the police and local government
committees independent of judicial proceedings. Not only
were citizens, who were subjected to such proceedings
denied the right to a judicial determination of their
sentence, they were denied the right to a hearing or
to counsel. In Tibet, the elimination of the "shelter
and investigation" provision has had no effect on
illegal pre-trial detention. Violations continue to be
reported under the revised law as the length of pre-trial
detentions exceeded the new standards and administrative
detention continued to occur. Within the revised CPL,
legal guarantees continue to fall short of international
standards. Non-custodial forms of detention under the
revised CPL are contrary to the fundamental guarantees,
expressed in the UDHR that, "[n]o one shall be subject to
arbitrary arrest and detention."
In Tibet, individuals continue to be detained
for long periods without formal charges or judicial
proceedings. The Lawyers Committee for Human Rights noted
that, "the core deficiency in the Chinese system is the
enormous power that the police have to detain suspected
criminals. International law requires that 'anyone arrested
or detained on a criminal charge shall be brought promptly
before a judge.' The CPL lacks any such procedure.
The result is that the police continue to have largely
unfettered discretion to hold suspected criminals for
extended periods of time. It is apparent from the revised
CPL that one of the principle functions of 'taking a
guarantee and awaiting trial' and 'supervised residence'
(two forms of pre-trial detention) is to allow the police
to impose restrictions on people against whom evidence is
insufficient to justify pre-arrest detention or arrest."
In its report from its field mission to Tibet and
China in October 1997, the Working Group on Arbitrary
Detention denounced the "absence of a judge or independent
tribunal when a detainee was sentenced by committees to
re-education through labour." During the 54th UN Commission
on Human Rights in March and April 1998, the Working Group
again expressed concern about the continuation of these
measures.
Ama Lhundup Wangmo
(62),
Tashi
(67),
Tsewang Palmo,
alias Tsepag
(65),
and
Sonam
were arrested on August 20, 1998
under suspicion of "indulging in political incitement of
elderly Tibetans." Reports indicate that elderly Tibetans
were gathering in increasing numbers around the Jokhang
Temple (Barkhor area) in Lhasa and authorities became
suspicious of a possible political motivation. At the time
of initial detention, the Intermediate People's Court of
Lhasa stated that the cases needed further investigation.
According to an unofficial source, since the time of
arrest, all four have been detained in Sietru Detention
Centre. They have been detained without trial for 15
months.
Kalden,
34 years old,
from Dagkar Tral-Zong Monastery
was arrested and detained in December of 1998 by officials
of the Tsolho "TAP's" Intelligence Bureau of Qinghai
Province. He was accused of donating 18,000 yuan to the
Tibetan Government-in-Exile. Kalden was detained for six
months without formal charge or trial, reportedly beaten
during interrogation and subsequently released on medical
parole. There are concerns that he may be re-arrested if
his health improves.
Ngawang Kyonmey,
27 years old, was arrested in September
of 1998 under suspicion of conspiring to hand a letter
to Mary Robinson, UN High Commissioner for Human Rights
upon her visit to Tibet in October of 1998. He reportedly
suffered severe beatings while in detention at Gutsa
Detention Centre. As of November of 1999, 13 months after
first being detained, no known charges have been filed.
Dakpa Gyaltsen,
24 years old, from Rong-Gonchen Monastery was arrested
by PSB officials at Xining Tibetan Medical College on
April 7, 1999. He was detained for distributing pictures
of the Dalai Lama and the Panchen Lama. At the time of
arrest, Dakpa Gyaltsen, from Sakyil village in Rebkong
County, Malho "TAP" was working at the aforementioned
college. Unconfirmed reports indicate that he is currently
being detained in a prison in Xining, possible Qinghai PSB
Detention Centre. His family has been denied visitation
rights and as of December of 1999, eight months after
first being detained, Mr. Gyaltsen had not been formally
sentenced.
Juvenile detentions continue to violate national and
international law, with cases of juveniles being held
in detention centres and prisons with adult inmates.
There are documented cases of juvenile detainees having
their visitation and correspondence rights denied. These
practices are in direct violation of the UN Convention on
the Rights of the Child, Article 37 (c) which states:
Every child deprived of liberty shall be separated from
adults ... and shall have the right to maintain contact
with his or her family through correspondence and visits,
save in exceptional circumstances.
Yeshi Yarphel,
a 15 year-old was arrested and detained by the PAP in late
Feburary, 1999. He was accused of spying for the Tibetan
Government-in-Exile and held in Nyari Detention Centre
in Shigatse. He was detained for two months without
formal charge before being released in late April of
1999. During detention he was denied visitation rights
and was reportedly confined with adult prisoners.
It remains unclear as of December 1999 whether 11 year-old
Gedhun Choekyi Nyima, the XI Panchen Lama is under house
arrest or some other form of custodial detention. Chinese
authorities have repeatedly denied requests, including one
by the UN High Commissioner for Human Rights requesting
access to the child. He is currently the youngest prisoner
of conscience in the
world.
Tibetan political defendants in particular are not in a
position to receive a fair trial based on international
standards.
The right to a fair trial as recognised in the UDHR has
become legally binding on all states as part of Customary
International Law. In Tibet, all individuals accused
of political crimes, including those officially termed,
"endangering state security" are denied the right to a
fair trial guaranteed in the UDHR.
Articles 10 and 11(1) of the Universal Declaration of
Human Rights state:
Everyone is entitled in full equality to a fair and
public hearing by an independent and impartial tribunal,
in determination of his rights and obligations and of
any criminal charges against him. Everyone charged with
a penal offence has the right to be presumed innocent
until proven guilty according to law in a public trial
at which he has had all the guarantees necessary for his
defence.
In Tibet, the judiciary is an organ of the Chinese
Communist Party (CCP), and decides matters before them
according to party mandates, disregarding national and
international law. "The Chinese Constitution provides
for an independent judiciary; however, in practice the
judicial system is subject to the policy 'guidance' of the
CCP and government influence, particularly in politically
sensitive cases." Referring to judicial procedures,
the International Commission of Jurists in 1997 noted,
"the procedures applied to Tibetans, particularly those
accused of political crimes, lacks the most elementary
safeguards. What is most troubling, however, is the
general dependence of the judiciary on the CCP and its
subordination to state policy -- including the policy of
repressing those advocating Tibetan independence."
According to the UN Basic Principles on Independence of
Judiciary:
The Judiciary shall decide matters before them impartially,
on the basis of the facts and in accordance with the law,
without any restrictions, improper influence, inducements,
pressures, threats or interference, from any quarter for
any reason.
The Chinese government has admitted that the judiciary is
not independent of the CCP, and plays an important role
in carrying out party mandates. Jianxin, People’s Court
President stated in 1990 that, "Leadership of the Party
(CCP) over the courts is the basic guarantee for the
courts to achieve their adjudicatory tasks." In Tibet,
all acts contrary to CCP policy are punished, regardless
of the law.
These activities are punished under "state-security"
laws. However, the revised CPL does not define the concept
of "endangering state-security", thereby permitting
arbitrary enforcement. The Tibet Information Network
has noted that, despite the obsolescence of the criminal
terminology of "counter-revolution," sentences for the
same activities in Tibet are, on the whole, growing longer,
more common, and are being handed down by "judicial" rather
than "administrative" procedures. There are "insufficient
safeguards against the use of evidence gathered through
illegal means such as torture; the appeals process fails
to provide sufficient avenue for review; and there are
inadequate remedies for violations of defendants rights."
In the year 1996, defendants in Tibet were found not guilty
in eight of 1,853 cases in the"TAR"criminal court.
The amended CPL gives most suspects the right to seek
legal counsel shortly after their initial detention
and interrogation. However, political activists still
have significant problems obtaining competent legal
representation of their own choosing. Compounding this
obstacle, lawyers are often reluctant to take political
cases as authorities in the past have retaliated against
lawyers representing such defendants.
Ngawang Sangdrol,
the longest serving female political prisoner in Tibet
had her sentence extended for the third time in October of
1998 by the Intermediate People's Court of Lhasa, bringing
her total sentence to 21 years. Arrested and sentenced
at the age of 15 in 1992, she is currently serving her
sentence in Drapchi Prison. Her continued detention and
sentence violates Article 17 of the Chinese Criminal
Code which stipulates that minors below the age of 18 and
above 14 will be given a lesser punishment or a mitigated
punishment. Her initial sentence as well as two subsequent
extensions violate the Chinese Penal Law. According
to sources from Tibet, Ngawang Sangdrol's sentence was
extended by four years due to her participation in the
May 1 and 4, 1998 demonstrations in Drapchi Prison, which
left 11 prisoners dead. Her original arrest and sentence,
and current detention violates various provisions of
International Law, including Articles 2, 5, 9, 10, 11,
19, 29 (2) and (3) of the UDHR, and Articles 1(1), 2 (3a,
b, c), 7, 9, 10 (1b), 14 (1, 2, 3b, 3d), 18, 19 (1, 2, 3)
and 21 of the ICCPR.
In 1999 there were no cases of successful appeal in
Tibet. Not only are defendants denied appeals, but
reports indicate that a majority of individuals do not
file appeals. Referring to the revised CPL, the Lawyers
Committee for Human Rights noted, "none of these changes
addresses the fundamental problem in the appellate process
in China: the reluctance of defendants to appeal." "No
Tibetan is yet known to have mounted a successful defence
against any politically nuanced charge, nor is an appeal
against conviction known to have been successful."
Chinese researchers have documented a steady decline
in appeal rates since the CPL first became effective
[1979]. The reluctance of defendants to appeal is due to
the fact that appeals are generally unsuccessful or higher
courts merely approve the decisions of the original trial
without reviewing the case. Another significant hindrance
in the appeal process is the fact that those who do appeal
may face a graver verdict.
Phuntsok Wangdu,
34 years old,
from Taktse County in Lhasa Municipality,
was arrested on February 7, 1997, charged with "espionage"
after being detained for 14 months without trial. He was
sentenced to 14 years' imprisonment by the Intermediate
People's Court of Lhasa in June 1998. He has appealed for
a re-trial, claiming he is innocent. He is currently held
in Drapchi Prison.
Arbitrary arrest, detention, denial of the right to a fair
trial, and hindrance to the appeals process continued
unabated in Tibet in 1999. Authorities suppressed all
acts of peaceful political expression, contravening
international and national laws in the process. The Chinese
government denies the existence of political prisoners
in Tibet, while repressing all acts it views as a threat
to its rule over Tibet. Obstacles for the implementation
of rule of law in Tibet remain severe, as the judiciary
remains a tool of state oppression, and all forms of
protest against the Chinese government are silenced,
often through violent measures.
[ Contents ]
[ Recommendations ]
[ Next:
Political Prisoners and Prisoners of Conscience ]
|
